United States v. Miller - U.S. Court of Appeals for the Armed Forces

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United States v. Miller, 08-0580/ARAmendment, the Government must prove beyond a reasonable doubtevery element of the charged offense” (citing In re Winship, 397U.S. at 364)). In contrast, the above cited language fromFoster and its progeny is at odds with these principles. To theextent those cases support the proposition that clauses 1 and 2of Article 134, UCMJ, are per se included in every enumeratedoffense, they are overruled.Article 134, UCMJ, is not an offense necessarily includedin Article 95, UCMJ. 6Consequently, the CCA was not authorizedto affirm a finding of guilt to a simple disorder under Article134, UCMJ. See United States v. Riley, 50 M.J. 410, 415(C.A.A.F. 1999) (“An appellate court may not affirm an includedoffense on ‘a theory not presented to the’ trier of fact.”(quoting Chiarella, 445 U.S. at 236)).The decision of the United States Army Court of CriminalAppeals is reversed. The finding of guilty of Charge III and6 Our opinion in Medina also noted that when comparing theelements of two offenses reveals that one offense is notnecessarily a lesser included offense of the other, therequirement of notice to an accused may be met if the chargesheet “make[s] the accused aware of any alternative theory ofguilt.” Medina, 66 M.J. at 27; see also MCM pt. IV, para.3.b.(1) (“The notice requirement may also be met, depending onthe allegations in the specification, even though an includedoffense requires proof of an element not required in the offensecharged.”). In this case, the charged offense as presented tothe members did not reference the elements of prejudice to goodorder or service discrediting conduct such that thespecification would have put Appellant on notice of Article 134,UCMJ, as a lesser included offense.10
United States v. Miller, 08-0580/ARits specification are set aside and Charge III is dismissed.The sentence is set aside and the case remanded to the UnitedStates Army Court of Criminal Appeals for sentence reassessmentor to order a rehearing on sentence.11
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United States v. Miller - U.S. Court of Appeals for the Armed Forces

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